Curtice v. Thompson

19 N.H. 471 | Superior Court of New Hampshire | 1849

Woods, J.

A question is made in this case, whether the facts proved sustain the plaintiff’s allegation, that the defendants maintained, kept up and continued the dam, and thereby caused the plaintiff’s land to be overflowed. The defendants purchased the mill and the dam in 1842, and had the right to maintain and keep it as they then found it. But in 1843 they repaired the dam, and so changed its character and construction as to cause the damage of which the plaintiff complains. His land was flowed beyond the point to which the defendants had any right to flow it by means of their dam. This is the substance of what is charged in the declaration, and fully sustains it. To this point was the case of Bunker v. Bunker, decided in Belknap, July term, 1847.

The defendants, however, say that having, as early as 1844, parted with their possession of the dam, and with all control of its waters, and conveyed, with certain reservations, their whole interest therein to other parties, who, from a day somewhat anterior to the conveyance, and until the commencement of the suit, exercised an undivided management and use of the premises, they are not responsible for the damage that ensued during the period named in the writ. But this question was examined in Plumer v. Harper, 3 N. H. Rep. 92, where it was held that the party who erects the nuisance, continues liable so long as it exists, although a like liability may have attached to other parties by becoming purchasers.

Without, therefore, laying any stress upon the reservations in the conveyances of these defendants to Leeds, as having the effect of making them partakers with him in the benefits of the nuisance, and partial procurers of the maintenance of it, we are bound by the very reasonable and well established doctrine of that case, to adjudge them liable in this action, as the original authors of the wrong.

The defendants further insist that, having purchased the land with the dam upon it, they are entitled to notice from the plaintiff of the injurious nature of the structure, and to a request from the complaining party for its removal, before they can be charged in an action for maintaining it. Ira this they would be deemed to be perfectly correct, if the thing complained of were the same which they found upon the land at the time of their purchase. But such is not the fact. The gravamen is, that they maintained a dam whereby the plaintiff’s land was flooded. Such was not the dam which their grantors erected or maintained, but the dam in its altered character, whether higher or tighter than the rightful structure which they purchased. As the authors of the nuisance, then, they have no right to any notice. They are liable upon the evidence, which charges them with having caused the nuisance, notice being required only to charge a purchaser by reason of having adopted it. •

Judgment on the verdict.